Standing Law: Keeping the Courthouse Doors Open to Preservation Issues

Blair Mountain in West Virginia, site of the largest armed labor
conflict in U.S. history, with the potential to be developed as a
heritage tourism destination, would be obliterated by strip mining. |
Credit: Harvard Ayers

Over the past few decades, standing decisions have increasingly hindered the ability to bring preservation issues into court. The National Trust has been involved in a number of standing cases over the years, including the recent state court litigation regarding cruise ship impacts in Charleston, S.C., and a case currently pending before the U.S. Court of Appeals for the District of Columbia regarding the de-listing of Blair Mountain from the National Register.

The National Trust and its preservation allies sued the National Park Service, arguing that the NPS had not followed the law in making its decision to de-list the site. Without reaching the merits of the case, the U.S. District Court held that the preservation coalition lacked standing to bring the suit and dismissed it. The court’s ruling was based not on the nature of the plaintiffs’ interests in protecting the site from de-listing, but on the court’s assumptions about the timing of the threatened harm. The National Trust and the other preservation plaintiffs appealed this decision, and oral arguments were held February 6, 2014.

A brief explanation of standing law can help explain why standing in any court or administrative tribunal is an important issue for preservation advocates.

Standing is a constitutional doctrine that limits the cases that a court can decide. Before a court hears a case, it must have jurisdiction over the issues raised, and standing is a jurisdictional requirement. The underlying reason for jurisdictional requirements is to ensure that courts stay within their role within our government’s system of separation of powers. To ensure that courts don’t get into the habit of second-guessing legislative or executive branch decisions, they only hear cases where there is an actual case or controversy--which means there must be a plaintiff who suffers a distinct harm recognized by the courts on one side, and a defendant on the other side who opposes the relief sought.

A good way to understand how standing acts as a check on judicial overreaching is to imagine what would happen if anyone could sue to challenge any unpopular law or decision made by Congress or an executive branch agency, even if they were not personally affected by the law. This type of litigation would require courts to second-guess other branches of government, even where the party bringing the lawsuit hadn’t suffered any injury. And as a practical matter, this type of litigation could swamp our courts. In a system that depends on a balance of powers between three co-equal governmental branches, this would be problematic.

Most people, including many lawyers, don’t give much thought to the law of standing. This is because in the majority of cases heard around the country, standing is not an issue. When one party sues another for breach of a business deal, for direct damage to property, and most other types of cases, proving standing is not an issue that keeps litigants out of court. However, it is a common hurdle for public interest plaintiffs, because we are often in the position of trying to stop a threatened harm that may affect a large number of people--like destroying a historic place--yet we must demonstrate that the harm we suffer is distinct from the harm suffered by the public at large. In recent decades, decisions by the Supreme Court of the United States have made proving standing more difficult, which has presented an obstacle to protecting threatened resources in some cases, especially in cases involving the protection of natural and historic resources.

View of Blair Mountain from the historic village of Gerrardstown, W.Va. | Credit: Nell Ziehl

With that broader explanation in place, proof of standing in practice requires the plaintiffs to show that they can satisfy each prong of a three-part test. First, they must show that they have suffered an injury that already happened or is imminent, and which resulted in a concrete, particularized injury to the plaintiffs. Second, plaintiffs must show that the defendant caused the injury. And finally, plaintiffs must show that if the court finds in their favor, the injury can be remedied. If a court finds that plaintiffs cannot meet any part of this three-part test, then the plaintiffs will be found to lack standing and the case will be dismissed.

In the Blair Mountain case, the district court found that the preservation plaintiffs did not satisfy the first prong of the three-part standing test, because the mining to be performed at the battlefield site under existing permits was not sufficiently “imminent.” The district court’s reasoning, however, creates a serious risk that bulldozers and backhoes will be operating right up to the boundary of the historic district on the mountaintop, before the court would find the harm to be imminent. The decision on appeal will determine whether the case will be returned to district court for consideration on the merits.

Ultimately, standing decisions can frustrate the ability of preservation plaintiffs to have their cases heard. If the Blair Mountain decision is upheld it would serve as further precedent for courts to limit the standing doctrine. The National Trust has been active and successful in its participation in caseson thistopic in the past, and will continue to fight against unreasonable limitations on standing that may prevent preservationists from having their issues heard in the courts.

Sharee Williamson is an Associate General Counsel at the National Trust for Historic Preservation.

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